"Taking drugs
is ... an act of rejection of the most fundamental duties of
individuals towards the communities in which they ... live"

Deputy prime minister
Gianfranco Fini, the general secretary of Alleanza Nazionale
(AN, the right wing National Alliance party) has presented a
draft law that would lead to the wholesale criminalisation of
drug users, removing the distinction between "soft"
and "hard" drugs and criminalising the personal use
and possession of relatively small amounts.

To punish drug users,
the government wants to extend the use of "administrative
sanctions" (such as the temporary withdrawal of passports,
the suspension of driving license and the confiscation of mopeds
or motorbikes) for offences deemed "not serious", while
tightening the criminal law and sending more drug offenders to
prison. The draft law was approved by the council of ministers
(the government cabinet), and is now due to be examined by parliament.
The measures introduced by the new law would reform the 1990
Iervolino-Vassalli law, which originally envisaged criminal sanctions
for the possession and consumption of illegal substances above
a specified average daily dose, but was amended by presidential
decree following a referendum on 18 April 1993 in which the public
voted for the de-criminalisation of possession of drugs for personal
use.

In the report containing the proposed law, Fini dismisses the
libertarian notion that taking illegal substances is a matter
of personal choice:

"taking drugs
is not a harmless exercise of freedom that does not tolerate
interference, but rather, it is an act of rejection of the most
fundamental duties of individuals towards the communities in
which they ... live: the institutions [state have a duty to respond
to such behaviour with a complex framework of measures"

He also explained that
the reform of drug legislation was necessary as a result of recent
judicial decisions, including a ruling by the Court of Cassation
(Italy's highest appeal court) that found that possession of
a larger amount of hashish than could be justified for "personal
use", purchased jointly by a group of persons who were going
on holiday together, did not amount to dealing.

Mass criminalisation
of drug usersThe proposed law seeks to overhaul
drug legislation through the wholesale criminalisation of consumption
and possession of drugs, rather than supply, and by eliminating
the distinction between hard and soft drugs (such as cannabis
and hashish), which Fini describes as "misleading",
due to the fact that some substances derived from cannabis have
higher contents of THC than was the case in the past. On the
basis of Fini's generalisations, and only ten years after 55.4%
of Italian voters supported the de-criminalisation of possession
of small amounts of drugs for personal use and consumption, such
acts are now set to be punished.

The complex "framework
of measures" that Fini called for was approved unanimously
by the Council of Ministers (the government cabinet) on 13 November
2003. It establishes an interministerial national committee to
coordinate activities to counter drugs, headed by the Prime Minister,
involving all of the ministers whose competencies are affected
(art. 1.2). It places the National Observatory on Drugs under
its control and also strengthens the centralisation of drugs
fighting services under the Direzione Centrale per i Servizi
Antidroga (DCSA, Central Direction for Anti-drug Services) -
a high level police body responsible for coordinating and organising
police services and activities to prevent and combat trafficking
in illegal substances. The DCSA will have to be informed of any
activity to counter drugs that is undertaken by any law enforcement
agency, and will be expected to establish a database and to conduct
studies "on each part of every drug haul" that is intercepted.

In order to dispel any
uncertainty as to what is to be considered a criminal offence,
the draft law would introduce two tables (article 14) of drugs
and medicines that contain active psychomimetic elements, and
of the thresholds that turn the "administrative" offence
of possession into a criminal offence (see below). Table I includes
opium, opiates and related substances, coca leaves and related
substances like cocaine, amphetamines, LSD, cannabis and related
or synthetic products producing similar effects. Table II includes
medicines that contain such substances, that have similar effects
or induce addiction. It is divided into five sub-sections.

At the same time, the
thresholds for possession will be lowered to catch all users.
"Objective standards" will be set for each drug, with
those caught in possession of less than the threshold charged
with administrative offences, while those who have more than
the "objective standard" would be charged with criminal
offences carrying possible prison terms of up to 20 years. Under
the suggested thresholds, the amount of cocaine that an individual
would have to be caught with to be charged with a criminal offence
is of 500 mg (half a gram), when the smallest amount that is
generally available for purchase is twice as much (one gram).
Any cocaine user would be liable, at one time or another, to
be caught in possession of the amount of cocaine required for
him/her to be considered a criminal. The same applies to cannabis
and its derivative products: any amount with above 0.25g of THC
(their active chemical) is to be viewed as evidence of a criminal
offence. The figures for heroin and amphetamine are 0.2g and
0.05g.

An investigation by the
Università Vita - Salute of San Raffaele hospital in Milan
found that 42% of teenagers aged between 14 and 19 had used illegal
substances, soft drugs in 90% of cases. These figures, alongside
the low thresholds introduced by the new law, illustrate the
risk that it may lead to the criminalisation of large numbers
of young people, and to an increased police presence in places
where they gather (see below).

The European contextA comparative study by the European
Legal Database on Drugs entitled "The role of the quantity
in the prosecution of drug offences" (April 2003), compares
the importance of quantities in defining drug offences in national
legislations in EU countries. It finds that only four countries,
Netherlands, Portugal, Finland and some German Landër define
specific quantities as thresholds for criminal proceedings to
be taken, and they are systematically higher than in the Italian
government's proposal. In Portugal, possession of up to ten daily
doses (1g of heroin, 2g of cocaine, 25g of marijuana, 5g of hashish,
0.5g THC content, and 1g of amphetamine) represents an administrative
offence. In Finland, sanctions are waived if the amounts are
under 10g of hashish, under 15g of marijuana, under 1g of heroin
or 1.5g of cocaine. In Germany, prosecution is waived mandatorily
for the possession of up to 6g of hashish, and it may be waived
for amounts of up to 30g (in one Landër, Hessen). In the
Netherlands, possession of up to 5g of soft drugs results in
dismissal, with coffee shops allowed to trade in soft drugs if
their trading stock is of under 500g.

Nine other countries mention
small quantities but leave them undefined, allowing discretion
by the judiciary, and five do not consider quantity as a criterion
for the offence. The study provides tentative guidelines based
on jurisprudence and policy recommendations. In Austria, a 1980
Committee of Health recommendation considers 2g of THC, and 1.5g
of cocaine, to be small quantities allowing the deferral of prosecution.
In Belgium, the law does not distinguish between types of drugs
and quantities, although a justice ministry policy guidelines
indicate that "no further action" should be taken against
persons caught in possession of small amounts of cannabis, and
that a distinction should be made between personal use and provision.
A later draft directive was under discussion to introduce a 5g
limit for personal use with regards to cannabis. In Denmark the
main consideration affecting prosecution is the distinction between
consumption and sale: a warning for possession of under 10g of
hashish, and then fines for quantities of up to 100g, are applicable,
as well as fines for up to 5g of heroin amphetamine or cocaine.
On the other hand, drug dealing (involving 10-15kg of cannabis,
or 25g of heroin or cocaine) may result in up to 6 years' imprisonment
(which may be raised to ten in extreme cases). Measures introduced
in 1997 against street dealers made it possible to sanction the
possession of 0.001g of cocaine or heroin as dealing, but only
if there is concrete evidence of dealing or intent to sell. In
France, there is no formal legal distinction between possession
and trafficking, although a 1999 justice ministry directive indicates
that possession may be sanctioned with imprisonment for up to
1 year, and trafficking with up to 10 years. In Greece, the main
distinction is between addicts and non-addicts with imprisonment
applicable to the former for possession of drugs for personal
use, and fines applicable to the latter. In Ireland, possession
for personal use carries more lenient punishment than possession
with intent to supply. Luxembourg also distinguishes between
personal consumption and dealing, with fines applicable to possession
of cannabis, and related activities such as purchase, transport
or possession of cannabis are de-criminalised. In Norway, a fine
or imprisonment for up to six months is applicable for possession
for personal consumption, although the criminal code envisages
up to two years imprisonment; aggravating circumstances, including
the possession of large amounts, may entail up to ten years'
imprisonment. In Spain, the main distinction, in terms of prosecution,
is between drug trafficking (involving 1kg of cannabis, 100-120g
of cocaine, 60-100g of heroin) and personal consumption, which
entails a dismissal of charges or acquittal. Sweden considers
possession of under 60g of cannabis, 5g of amphetamine or 0.6g
of cocaine as "petty" offences, which may be sanctioned
by fines or up to six months' imprisonment. In the UK, quantities
are not specified but a distinction is made between possession
and dealing, and between hard and soft drugs (A, B, or C class).

Definition of offences
and sanctionsAfter eliminating the distinction
between soft and hard drugs, the proposed Italian law also does
away with the distinction between dealing and personal consumption.
Article 72.1 forbids the taking or any kind of use of any proscribed
drugs and psychotropic substances. Article 73 of the draft law
envisages drug offences carrying prison terms of between six
(the previous minimum was eight) and 20 years, "for anyone
who... grows, produces, extracts, refines, sells, offers or makes
available for sale, cedes, distributes, trades with, procures
for others, sends, passes on, or sends in transit" amounts
exceeding the minimum thresholds for possession to be considered
a criminal offence. The new article 73.1 bis reintroduces punishment
for the possession of drugs, "anyone who imports, exports,
buys, receives in any capacity, or in any manner illegally holds"
the proscribed substances, and fixes a threshold that for the
amount that represents an administrative offence and a criminal
offence (see above). Elements such as "presentation, ...
overall gross weight,... divided packaging,... or other characteristics..."
will be considered in deciding whether "they appear to be
destined for third parties or otherwise for use that is not exclusively
personal". The new article 73.5 decrees that for offences
of "slight importance", due to their characteristics
and the amounts involved, prison terms of between one and six
years are applicable, alongside fines of between 3,000
and 26,000. The prison terms may be substituted, on request
from the accused, by community service lasting for the same time
as the prison sentences, but no more than twice.

The draft law would also
abolish the warning (equivalent to a "caution" in the
UK) that is currently applicable to first-time offenders, extending
the use of administrative sanctions applicable to people caught
in possession of small quantities of drugs, listed in article
75. They include the suspension of their driving and/or firearms
licenses, the withdrawal of residence permits given to foreigners
for tourist purposes, and the administrative detention of two-wheel
motor vehicles (moped or motorbike) that the person in question
may be using. These sanctions will be applicable for a period
running from one to twelve months (the maximum was previously
four months). Offenders will also be systematically invited to
undergo drug rehabilitation programmes. Article 76 deals with
additional sanctions that are applicable to repeat offenders
or those who have shown evidence of dangerous behaviour (including
traffic offences, and offenders who have been found guilty of
offences against people or property, regardless of whether an
appeal has been filed), such as the obligation to report to a
police station twice a week, curfews, driving bans, or bans from
leaving their town of residence. The questore (the local head
of police in a provincial capital, who reports to the prefetto,
police chief) has discretion for ordering any of these measures
that s/he may deem necessary, for up to two years. Contravening
any of these additional administrative sanctions taken for public
safety reasons can lead to the arrest of people charged with
"administrative" offences for between three and 18
months. With regards to non-EU foreign nationals, their status
is set to be further undermined. Under the proposed law, administrative
offences are set to be "taken into account" in relation
to the renewal of their residence permit (and thus may lead to
it being revoked), whereas criminal offences will result in their
immediate expulsion.

Alternative sentencing
and private drug rehabilitationThe proposed law on drugs seeks
to establish a framework of alternative sentencing measures for
offences that are deemed to be "not serious" (carrying
sentences of between one and six years), which is aimed at getting
drug users and addicts into rehabilitation programmes. The increased
role that private rehabilitation centres are set to play is likely
to turn drug therapy into an increasingly profitable business.
Patrizio Gonella of Associazione Antigone, criticised the fact
that private companies will be granted the power to take decisions
concerning the state of addiction of offenders that may have
penal implications, arguing that this may be unconstitutional.
He also notes that drug addicts make up 28% of the Italian prison
population, rising to 39% considering people detained for drug
offences. He notes that the proposed law may have the effect
of "filling prisons beyond their capacity". After extending
the applicability of prison sentences for the consumption and
possession of soft drugs, the draft law introduces the possibility
of substituting these with drug rehabilitation treatment and
house arrest. Article 89 decrees that under certain circumstances
(excluding cases involving high-security detention conditions,
or involving organised or subversive criminal activities), the
judge may order house arrest for the accused, if the person in
question is undergoing therapy in a state or recognised private
rehabilitation centre for addiction to drugs or alcohol. Article
90 envisages a five-year suspension of sentences for crimes that
have been passed for crimes committed in relation to an individual's
condition as a drug addict if the person is undergoing therapy,
as well as the suspension of any fines if the individual's economic
situation is particularly bad. After five years, if no further
offences have been committed, the sanction is deemed to have
expired. Otherwise, the suspension will be revoked.

Article 114-122 of the
draft law increase the role of private rehabilitation centres
alongside existing public structures (SERT), by envisaging the
creation of regional registers of centres that are recognised
by the public administration. These centres will be regulated
by conventions with regional government which may include requirements
for periodic updates on their results and evaluation of therapies.
The proposed new article 89.6 of the drugs law is liable to break
the bond of trust between drug addicts and drug rehabilitation
personnel. It makes the person in charge of a drug rehabilitation
centre responsible for "informing the judicial authority
of any violation committed by a person undergoing therapy...
if it constitutes a crime". The punishment for failing to
report such behaviour is that the centre's activity may be suspended,
or it may be struck off the register of recognised drug rehabilitation
centres.

Information campaigns,
informers and surveillanceThe government intends to compound
its prohibitionist policies with information campaigns on the
negative effects on health that result from the use of drugs
and psychotropic substances, and on the seriousness and extensiveness
of the criminal phenomenon of the trafficking of these substances.
The campaigns, on which the government will spend 5,160,000
per year (drawn from national anti-drug funding), are to be issued
through public and private television and radio broadcasters,
the daily and periodical press, through posters, and telephone
or online services.

The proposed law wants
the fight against drugs to permeate civil society. Article 79
introduces sanctions of between three and ten years in prison
and fines of between 3,000 and 10,000 for anyone
who sets up, or permits the setting up, of "public establishments,
private clubs of any kind or any place where people gather"
who make illegal use of drugs, medicines or psychotropic substances
included in the tables I (see above) and II, section A (including
substances with medicinal purposes and painkillers such as morphine,
methadone and codeine). Prison sentences of between one and four
years, and fines of between 3,000 and 26,000 are
envisaged for the owners of public establishments for the illegal
use of substances included in table II, section B (including
barbiturates and diazepam) on their premises. Thus, the owners
and managers of any public establishment or club will face crippling
sanctions for the fact that someone uses drugs in their venue,
encouraging them to adopt stringent surveillance measures. These
measures are likely to be used to justify police raids or undercover
activities against social centres. The social centre phenomenon
grew in the early nineties out of squatted buildings used by
youths to organise political and cultural activities. They have
become popular meeting places for young people in many Italian
cities, but are one of the government's pet hates due to their
political activism, and have been repeatedly criticised by members
of the government coalition for being places where young people
gather and consume drugs.

Article 97 of the law
decree introduces immunity for police officers from drug squads
involved in undercover activities who commit drug offences, or
use false documents, "for the sole purpose of acquiring
evidence of crimes". This immunity also applies to any informers
or go-betweens that they may use in such operations. There will
be no need for prior judicial permission, as prosecuting magistrates
will only have to be informed about any such operation 48 hours
after it begins, whereas the DCSA will have to be informed "immediately".
Article 97.5 seeks to introduce sanctions carrying prison sentences
of between two and six years for anyone who unduly reports or
divulges the names of officers involved in such operations.

Drug operations in
schoolsSchools may also bear the brunt
of the government's prohibitionist drive. Police searches in
the houses of students of the Virgilio secondary school in Rome
on 1 October 2003, a few days after Fini unveiled his plans for
a tough stance against the use of soft drugs, highlighted the
possible implications of the proposed law. The searches led to
the detention of six persons, one of whom was charged with drug
dealing and possession, and five others were identified as users,
in an operation which saw the confiscation of ten grams of hashish.
The police operation was criticised after evidence surfaced that
undercover surveillance operations had been going on in the Virgilio
since the start of the school year. On 6 October, the Democratici
di Sinistra (DS, Democratic Left) MP Leoni asked in parliament
whether it was true, as alleged by a police officer, that

"from the start
of the school year, [the police has obtained... the authorisation
to use some rooms in the school, introducing agents disguised
as workmen and then as caretakers into the school; after several
days' surveillance the agents spotted and photographed a group
of students who periodically met up in a corner of the school's
courtyard".

A representative of the
Verdi (Greens) in the Lazio regional assembly criticised the
operation as disproportionate:

"It is the beginning
of a police state, the minors have been treated like criminals,
searched in their houses, photographed and video-recorded"
in a sophisticated operation that would be more appropriate for
"big-time, dangerous drug dealers".

The incident in the Virgilio
is far from isolated, as noted by MP Titti de Simone in parliament
on 23 October, who spoke in response to an order by the head
of police Gianni De Gennaro which called for the taking of "necessary
pre-emptive measures" in the form of the "surveillance
of places where young people gather" after the research
by the Università Vita - Salute, indicating the high proportion
of teenagers who use soft drugs, were released (see above). De
Simone listed a number of police operations in secondary schools,
arguing that they are suffering a progressive "militarisation".
In Turin, there was a four-day police presence at the gate of
the Einstein school; in Florence, there was a heavy-handed police
search in the Galileo for which the police chief later apologised,
and a police raid with dogs in a school in Borgo San Lorenzo
(Florence); in Milan, a police raid with dogs during which students
were searched took place in the Beccaria, and a headmaster who
refused to authorise a raid in her school in Rho (Milan) was
charged of allowing drug use in her school.

ConclusionIf approved, the proposed reform
of the Italian drugs law will result in the mass criminalisation
of the large number of Italian citizens who are drug users. Not
only does this prohibitionist approach contradict the Italian
public's support for the de-criminalisation of possession for
personal use which was expressed in the referendum held in 1993,
it also introduces the toughest regime of sanctions (alongside
Greece) against drug use in Europe. It seeks to establish drug
users as an underclass in Italian society who do not fully enjoy
the rights associated with citizenship, such as the freedom of
movement (through the confiscation of passports), as well as
the extension of offences for which imprisonment may be applied.
The low thresholds that are envisaged for a drug offence to be
construed as "criminal" mean that a growing number
of people will be imprisoned (when the prison system is already
facing a crisis due to overcrowding), or subjected to alternative
sentencing measures such as community service, drug therapy,
probation periods, curfews, house arrest, or the confiscation
of motor vehicles, which may affect them at a personal and professional
level. The law would also pave the way for increasingly pervasive
and interventionist policing and surveillance activities, particularly
in places where young people gather (see above). It also dismisses
the lessons that can be learnt from the effects of the prohibitionist
drive against immigration, whereby increased profit margins have
provoked a proliferation of organised crime networks specialised
in people smuggling. Steve Rolles of the Transform Policy Institute
(see below) argues that at the international level, increased
profit margins result in a proliferation of international drug
trafficking organisations, whereas at the local level, they produce
territorial battles between dealers, inflated street prices which
result in more violent crime committed by addicts to fund their
addiction, and the weakest links (small-time users) bear the
brunt of drug enforcement activities.

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